Anne Arundel residents, BGE fight over fly ash Hole in clay layer could allow leaching of coal byproduct

March 08, 1998|By Cheryl Lu-Lien Tan | Cheryl Lu-Lien Tan,SUN STAFF

Anne Arundel County residents who live near a Baltimore Gas and Electric fly ash disposal site are incensed by what they see as a years-long deception by the utility and a federal agency about the existence of a seamless protective layer of clay under the site.

Almost 17 years into their battle against BGE, residents of northern Anne Arundel's Solley community learned months ago about breaks in what they thought was a continuous layer between the ash and underground water.

The utility and officials of the Army Corps of Engineers deny any wrongdoing.

Since 1982, using 3 million tons of fly ash -- a byproduct of burning coal for electricity -- as structural fill, BGE has built two sections of a business park at Brandon Woods. The utility, which burns about 5 million tons of coal a year, producing 500,000 tons of fly ash, wants to build a third section.

Residents fearful of pollution have been fighting that idea since 1990. BGE has fended off the opposition, repeatedly talking about the continuous clay layer, according to documents obtained through a Freedom of Information Act request.

However, the county Board of Appeals, after listening to a BGE expert testify that the clay layer was "not continuous" in January, ordered BGE to install a $10 million liner. BGE is appealing.

While the legal battle over construction continues unabated between the utility and residents, a new battlefront has opened -- was there intentional deception about the clay layer?

Richard Spencer, chief of the corps' Potomac Basin Permit Section, said breaks in the natural clay layer are not news to the corps or to BGE. Spencer, who signed a permit in 1993 giving BGE the go-ahead for the third section of the industrial park, said BGE reported evidence of a break in the clay to the corps beforehand.

Spencer said the corps' and BGE's "data indicated that there was a thin layer or a hole" in a portion of the section three site that was on an upslope.

"But no fly ash was being placed there, and because it was on an upper gradient, it was impossible for leachate to get to it," he said. "It did not raise any red flags."

BGE geo-technical expert Barbara Cook, whose testimony prompted the board to issue its expensive order to BGE, gives an account that differs from Spencer's. She said BGE data sent to the corps did not suggest any breach in the layer.

"The potential is that they were referring to an area where there's less clay," she said. "I object to the misconception that there's a hole in the clay. [The clay layer] actually grades into silty material. It's a little more permeable than clay, but there still is clay."

Whether there is a hole in the clay liner is significant. Documents show that while the corps was considering the permit, two residents, one real estate developing company, the U.S. Department of the Interior's Fish and Wildlife Service, the U.S. Department of Commerce's National Oceanic and Atmospheric Administration and the Maryland Department of the Environment all wrote to the corps with concerns about the proposed disposal.

BGE rebutted many of these concerns in letters to the corps with the repeated assurance that "the entire site is underlain by a thick layer of clay."

The corps held no hearing.

"Big shame on [BGE] if they knew" there was a gap in the clay layer, said John B. Britton, the residents' lawyer. Through the years, BGE "kept throwing out terms to the public saying 'varying layers of different permeability' and nobody understood what that meant," he said.

Britton said the corps never corrected the misinformation it put out in a short Nov. 13, 1990, public notice that said: "It is proposed that the uppermost aquifer will be protected from potential degradation by ash leachate by a continuous naturally occurring underlying layer of compact clay."

"The notice does not say there is a hole in the clay," Britton said. "It says specifically there is a continuous clay liner underlying the whole site. They sent out a notice to everybody in the world without a red flag and there are questions about the layer? It is explicitly misleading."

Spencer dismissed the residents' reaction as a "misunderstanding."

"In the public notice, we meant the actual permit site itself," he said. "As far as the natural clay layer was concerned, we meant [only] the areas where the fly ash was being placed. That was the area that was of concern."

Spencer said he had mentioned the hole in an environmental assessment of the site he included with the 1993 permit.

However, residents obtained that assessment and the permit last December through a Freedom of Information Act request, and they couldn't find any such mention.

When asked last week to point out the reference he had mentioned, Spencer could not find it. After a second reading showed the assessment never mentions a hole, Spencer said: "It's been so long since I wrote that thing, I can't remember what's in it."

Thursday, Spencer said the hole probably was mentioned in one of the documents referred to in the environmental assessment; he promised to give The Sun that document this week, with BGE's report about the hole in the clay layer for this report.

Spencer did not return phone calls after making that promise and could not be reached.

His secretary said Tuesday that he is on vacation for two weeks.

Pub Date: 3/08/98

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